[2022] KEHC 11953 (KLR)

VOM v Republic (Criminal Appeal 144 of 2019) [2022] KEHC 11953 (KLR) (Crim) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11953 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 144 of 2019

LN Mutende, J

May 16, 2022

Between

VOM

Appellant

and

Republic

Respondent

(Being an Appeal arising from the original conviction in Criminal Case No 859 of 2015 at Chief Magistrates Court Makadara by Hon H L Gatheru – SRM on Febraury 27, 2019)

Judgment

1. VOM, the Appellant, was charged with incest contrary to Section 20(1) of the Sexual Offences Act. Particulars of the offence being that on March 8, 2015 at [Particulars withheld] Area in Makadara District within Nairobi County, being a male person caused his penis to penetrate the vagina of SK a female person whom to his knowledge was his daughter aged 14 years

2. In the alternative, he faced the charge of committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. Particulars of the offence were that on March 8, 2015 at [Particulars withheld] Area in Makadara District within Nairobi County, intentionally and unlawfully committed an Indecent Act with his daughter named SA aged 14 years by touching her private parts namely vagina. Having been taken through full trial he was convicted and sentenced to serve ten (10) years imprisonment for the offence of incest.

3. Aggrieved, the appellant appeals on the following grounds:1. That the evidence was overly contradictory had material discrepancies, inconsistent, uncorroborated, misconceived and inconclusive to attain a conviction.2. That the accused person was not accorded a fair trial as stipulated by the Articles 50 (2) (b) and (k) of the Constitution learned trial Magistrate failed to appreciate the fact that the threshold of poof was overly wanting and quite below the required standard of proof.3. That the learned trial Magistrate erred in law by paying inordinate regard to the prosecution case and disregarded the submissions of the appellant occasioning miscarriage of justice.4. That the learned trial Magistrate erred in both law and fact in reliance to circumstantial evidence which was not proved beyond reasonable doubt.5. That the defence of the appellant was thrashed without cogent reasons having been adduced Section 169 (1) of the penal code. The doctor’s report indicates that the girl was still a virgin and that the accused’s DNA report was not tabled before the court6. That the learned trial Magistrate failed to appreciate that vital and critical evidence information to secure a conviction on the said charge were not availed Section 144,146,150 and 155 of Criminal Procedure Codeoccasioning a grave prejudice.

4. To prove the case the prosecution called witnesses. PW1 SA, the complainant told the court that on March 8, 2015 she was asleep when the appellant went and asked her to remove her clothes. She refused and he went to the sitting room. She stayed in the room crying and wondering and shortly thereafter she heard a bang on the roof. As she prepared to remove the skirt, the appellant went back and told her to sleep.

5. On March 10, 2015 at about 10. 30 pm the appellant went to her room switched off the lights and told her to remove clothes and proceeded to molest her. She concluded her evidence in chief by stating that the appellant started molesting her while she was in class six (6) (in 2014) and when she reached standard seven (7) he would enter her room and abuse her sexually. At times her mother would find him inside her room and they would quarrel.

6. PW2, MGA, the wife of the appellant and mother of the complainant was hesitant to testify and disagreed with the content of the statement she recorded at the Police Station. As a result she was declared a hostile witness and even refused to answer questions put to her.

7. PW3 Millicent Asiyo a neighbor to both the appellant and complainant stated that she used to hear cries emanating from the house of the appellant at about 10. 00 pm. The victim’s voice intonation was fearful like for a person being strangled. On March 8, 2015 she heard someone crying and there was a bang on the roof of the house. The next Tuesday he allegedly heard the appellant’s sister saying that he would be arrested for sleeping with the girl and indeed it came to pass.

8. PW4 KOA the cousin of the appellant stated that he was with their sister SA when PW2 lamented that she was afraid the appellant would impregnate PW1. That she uttered the remarks severally. Later on VA the appellant’s sister told him that the appellant was defiling the complainant. Afterwards the appellant was arrested.

9. PW5 Maureen Akena adduced in evidence a PRC form filled by colleague.

10. PW6 No xxxxx P C Benson Kimeu arrested the appellant following allegations of defilement.

11. PW7 Dr Kizzi Shak o examined the complainant on March 13, 2015 and found the hymen having anold tear which suggested previous penetration.

12. PW8 No xxxxx, P C (W) Margaret Klambwi received a complaint about an individual who was defiling his daughter. Following the report that made on March 10, 2015, she summoned PW2 to the Police Station as the complainant had been taken to hospital by members of public who later arrested the appellant and took him to the Police Station. She established that the appellant was not the complainant’s biological mother.

13. Upon being placed on his defence the appellant stated that on the material date at about 11. 00 pm he was preparing to go to bed when he heard noise emanating from a path next to his house. Then he heard a bang on the roof of the house. The children were woken up by the bang but he calmed them down and told them to go back to sleep. Three (3) days later he was arrested following false allegations that he had defiled the complainant.

14. The trial court analyzed evidence adduced and concluded that the appellant, the complainant’s father within the definition under Section 22 of the Sexual Offences Act committed Indecent Acts with her which included penetration that proved the offence of incest.

15. The appeal was canvassed through written submissions. It was urged by the appellant that he was not accorded a fair trial as the prosecution was initially conducted by a Chief Inspector instead of the office of Director of Public Prosecutions which had the mandate to prosecute the case. That the learned trial magistrate erred for convicting him when evidence adduced was full of contradictions, inconsistences and material discrepancies. That speculations, innuendos and hearsay cannot form a basis for conviction. That the complainant was not truthful considering evidence adduced by PW5 Maureen Akena. That inconsistences in evidence adduced by the complainant read together with the evidence of PW2 her mother, and that of PW5 Dr Kizzi Shako cannot form a basis of conviction.

16. On its part the State/Respondent opposed the appeal. It was argued that the complainant was the appellant’s half daughter and he was positively identified as the assailant; And mere denial by his wife was trying to save him as a husband.

17. This being a first appellate court it is duty bound to analyze and evaluate evidence adduced at trial afresh so as to draw its own conclusions while bearing in mind that it neither saw nor heard witnesses who testified. In the case of Okeno vs Republic [1972] EA 32, the Court of Appeal stated that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R [1957] E A 336) and to the appellate courts own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M Ruwala v R [1957] EA 570. It is not the function of a first appellate court mer ely to scrutinize the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be support ed. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - See Peters v Sunday Post [1958] EA 424”.

18. The argument of the State is that the appellant herein engaged in sexual intercourse with the complainant minor who was related to him and within the consanguinity prohibited by law. Therefore to prove the case, the prosecution that made the averment was required to prove elements that constitute the offence of the incest.

19. The offence of incest by male is created by Section 20 (1) of the sexual offences Act that provides thus:Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

20. To prove the offence the prosecution who alleged was duly bound to prove that the appellant either committed an Indecent Act or and act that caused penetration with the complainant. An Indecent Act is defined by Section 2 of the sexual Offences Act as:An unlawful intentional act which causes—a.Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;b.Exposure or display of any pornographic material to any person against his or her will;

21. And penetration is defined thus:The partial or complete insertion of the genital organs of a person into the genital organs of another person.

22. The complainant testified that the appellant had been molesting her prior to the fateful date, a fact that was within the knowledge of her mother, PW2.

23. PW2 recorded a statement with the police where she stated that she caught the appellant defiling the complainant on March 7, 2015 an act that was repeated on March 82015. That she was woken up by the bang on the roof and when she went to look she found the appellant contravening the law. These averment were however denied such that the witness had to be treated as hostile. The court noted her demeanor of wanting to protect her husband.

24. PW2 having been an adverse witness to the prosecution that availed her to support their case, her evidence could not be relied on. The prosecution counsel endeavored to cross-examine her but she deliberately refused to answer questions an act that made the court opine that her demeanor showed that she was out to protect the appellant. What the prosecution counsel failed to do was to impeach her credibility as provided by law. In the case of Cole vs Cole (1866) LR IP D 70, 71 it was stated that:“A hostile witness is the one who from the manner in which he gives evidence shows that he is not desirous to telling the truth to the court”

25. PW4’s evidence to the effect that the appellant was defiling the complainant was an account allegedly heard from the sister to the appellant who did not testify and PW2 who recanted what she recorded. Therefore, such evidence was not admissible in law.

26. For that reason, the court could only rely on evidence adduced by the complainant and the medical evidence on record. It is urged that there were two (2) conflicting medical reports. At the outset the complainant was examined by Peninah Angwenyi, a Clinician colleague of PW5. What is indicated is the fact of the complainant having been taken to a Sexual Violence Recovery Centre and was declared a victim of an ongoing sexual assault by her father. According to the document the complainant did not have any injuries as the genetalia was normal. The victim was examined on March 11, 2015 at about 3. 00 pm.

27. PW7 Dr Kizzi Shako examined the complainant two (2) days later, March 13, 2015. Although the genitalia were normal externally, the hymen had an old tear at 9, O’clock, which suggested a previous penetration.

28. In the case of Twehegane Alfred vs Uganda, Criminal Appeal No 139 of 2001 (2003) UGCA 6 the court stated that:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

29. According to PW8 the report was made to the police officer who summoned PW2 and issued a P3 form that was to be filled on March 11, 2015. Circumstances under which she was taken to the Recovery Centre; and, what was not stated was the qualifications of the examining Clinician Officer and by extension her expertise in that area.

30. Be as it may, what is evident is the fact of the complainant a minor having been taken to the Recovery Centre by her mother, an adult who was an unreliable witness who recanted her statement; a fact that made the trial court concluded that she wanted to protect the appellant, her husband.

31. This therefore leaves this court to re-consider evidence adduced by the complainant. In the case of AML vs Republic (2012) eKLR the court stated that:“It was submitted that there was no medical evidence to connect the appellant with the offence as no DNA test was conducted. The position of the law is that the offences of rape and defilement are proved by way of oral evidence and circumstantial evidence and not necessarily by medical evidence.

32. In the case of Basita Hussein v Uganda S C Criminal case No 35 of 1995, it was stated that“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims own evidence and corroborated by medical evidence or other evidence.”

33. In the Kassim Ali v Republic Criminal Appeal No. 84 of 2005 it was stated that“… Examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

34. The complainant testified thus:“He came at night and told me to remove my clothes. He then switched off the lights….. He then slept with me after switching off the lights”

35. The court recorded that:“PW1 is terrified and looks distraught. Has difficulty in speaking”.The observation that was made during consultation was that she was sad and shocked.

36. In the case of Sam Butera v Uganda SC Crim Appeal No 21 of 1994 it was held that the distressed condition of a victim was important factor when the victim of aggravated defilement reported to her immediate relatives while crying about what happened to her.

37. The complainant testified to have sought refuge from her mother who did not protect her from the stepfather. Although she took her to the Sexual Violence Recovery center, in court she chose to be difficult and denied having knowledge of anything. In the premises the complainant was a child to be believed when she recorded her statement with the police at the time of the report being made and when she testified as an adult.

38. The complainant used the term “the appellant slept with her after switching off lights.” Sleeping with another is an informal way of stating that one is having sex with someone. Therefore, what the complainant meant was that the appellant was engaging in sexual intercourse with her.

39. I must point out that on the matter of the relationship between the complainant and accused. At birth, according to the Birth Certificate issued she was acknowledged as the daughter of the appellant. In his defence he denied being the biological father, but according to Section 22 of the Sexual Offences Act, the appellant was the complainant’s half father. Therefore their relationship was within the prohibited degree under the Sexual Offences Act.

40. The appellant faults the court for non-compliance with section 169(1) of the CPC which provides thus:“Every such judgment shall except as otherwise expressly provided by this court, be written by or under the direction of the presiding officer of the court, in the language of the court and shall contain the point or points for determination, the decision thereon and the reason for the decisions and shall be adopted and signed by the presiding officer in the open court at the trial of pronouncing it..”

41. The provision of the law cited requires every judgment to contain points for determination, the decision there on and reasons for the decision. The learned magistrate considered the prosecution’s case then the defence put up and went ahead to frame issues for determination. He considered each and every point and the defence put up which he rejected as mere denial and chose to believe the prosecution’s case.

42. The appellant faults the court for not according him a fair trial as provided by Article 25(c) of the Constitution. In particular he argues that at the outset the trial was initiated by the police who prosecuted the matter hence the question whether the police had the discretion to institute criminal proceedings? According to the record, when the plea was taken on March 12, 2015 CI Kurgat was the prosecutor. The prosecuting officer – “Fuchaka’ appeared when the matter proceeded to hearing.

43. Article 157 (6) (a) (b) of the Constitution provides thus:The Director of Public Prosecutions shall exercise State powers of prosecution and may-a.Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;(b)Take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

44. The office of the Director of Public Prosecutions Act No 2 of 2013 was assented to on January 14, 2013 and became applicable on 16th January 2013. This was the Act that gave effect to Articles 157 of the Constitution. Prior to the office of DPP being accorded the mandate to institute criminal proceedings the powers were being executed by the police. The taking over was not done abruptly, it took some time and it had to be done progressively. Looking at the record of the lower court, the case had already been instituted and the police had undertaken the prosecution process. However, the Office of the Director of Public Prosecutions took over and continued with the criminal proceedings herein. At the point of presenting evidence as correctly stated, the prosecution was undertaken by the State Counsel. In the premises the appellant suffered no prejudice and the trial in issue was fair.

45. This was a case where the prosecution proved that the appellant a male person was penetrating the complainant who within his knowledge was his daughter.

46. Evidence was adduced of the age of the child which was not in dispute. She was of an apparent age of 13 years at the time of the act.

47. The learned trial magistrate sentenced the appellant to serve ten (10) years imprisonment, a sentence that was within the law. This is a case that does not call for interference. In the premises, I find the appeal lacking of merit. Accordingly, it is dismissed in its entirety.

48. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF MAY, 2022. L N MUTENDEJUDGEIN THE PRESENCE OF:AppellantKiragu for ODPPCourt Assistant - Mutai